Mombasa Court of Appeal halts varsity's Sh25.9 million payout to ex-employees

The Court of Appeal in Mombasa has suspended the implementation of an order directing the Technical University of Mombasa (TUM) to pay Sh25,910,295 to 67 ex-employees including lecturers.

The Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers had lodged a claim on behalf of 67 former employees against the TUM council.

The unions were seeking a declaration that TUM's refusal to pay service gratuity to the 67 was unlawful and illegal.

They had also sought an order directing TUM to pay the former employees a total sum of Sh25,910,295 on account of service gratuity.

The ex-workers had pleaded with the court to order the varsity to issue certificates of service to them.

The 67 had sued the varsity in 2021 after failing to renew their contracts in 2018. They had served since 2011.

The union's case was that the 67 were employed by TUM on contract during the period between 2011 and 2018 when their contracts ended.

It sued arguing TUM refused to renew their contracts but, instead, outsourced their services thereby denying them employment and that the terminated workers were victimised after their union filed a petition seeking their permanent and pensionable terms of employment with TUM.

Lady Justice Monica Mbaru of the Employment and Labour Relations Court in Mombasa had directed the TUM Council to pay the former workers the money and issue the ex-workers certificates of service.

But TUM appealed the orders issued on June 29, 2023, at the appellate court. The appellate court judges Agnes Murngor, Imaana Laibuta and George Ondunga suspended the high court's order pending the hearing of the appeal.

The varsity is arguing that the learned Judge erred in law and fact by holding that the 67 were entitled to service gratuity and by holding that the union was right to represent 12 of the ex-workers who were not among its members.

TUM also says that there was no termination of the 67 ex-workers' employment as their contracts had expired by effluxion of time and its council was under no obligation to renew their contracts.

It avers that the former employees' contracts did not provide for payment of service gratuity.

TUM's motion in the court of appeal was supported by the affidavit of the Vice Chancellor Professor Leila Abubakar who argues that the ex-workers did not qualify for the money they were awarded by the high court. The VC argues that if the judgement is executed, the university will suffer substantial loss.

The VC argues that if the payments are made, TUM will be unable to recover the same from the ex-workers after winning in the appeal because they are not in any gainful employment and their whereabouts remain unknown.

But in response, the union through its Chief Industrial Relations officer Hezron Onwong'a, dismissed this argument as "flawed and misguided, misconceived and an abuse of the court process".

"The grievants are law-abiding citizens and taxpayers within Kenya, and the notion that (TUM) would lose its money is ill-motivated since the grievants own properties in Kenya," states Onwong'a.

He states that the amount decreed by Justice Mbaru was legally accrued and fell due at the end of the grievants' separation of employment; and that TUM would not lose any money as the same can be refunded.